Scott, et al. v. Baltimore County, Maryland Civil No. SAG-21-34 United States District Court, D. Maryland Filed July 15, 2022 Counsel Bradford W. Warbasse, Esq., P.O. Box 1284, Brooklandville, MD 21022 Howard B. Hoffman, Esq., Jordan Song En Liew, Esq., Howard B. Hoffman Attorney at Law, 600 Jefferson Plaza, Suite 204, Rockville, MD 20852 Stephen J. Springer, Esq., 1901 Walnut Street, Suite 4A, Philadelphia, PA 19103 Jeffrey T. Johnson, Esq., Kraig B. Long, Esq., Nelson, Mullins, Riley & Scarborough, LLP, 100 South Charles Street, Suite 1600, Baltimore, MD 21201 Jennifer R. Frankovich, Esq., Veronica N. Love, Esq., Baltimore County Office of Law, 400 Washington Avenue, Towson, MD 21204 Jonathan W. Greenbaum, Esq., Coburn and Greenbaum, PLLC, 1710 Rhode Island Avenue, NW, 2nd Floor, Washington, DC 20036 Gesner, Beth P., United States Magistrate Judge Opinion *1 Dear Counsel: Currently pending are defendant's Motion to Compel Deposition Testimony and Motion for Discovery Sanctions (“Motion to Compel”) (ECF No. 124), plaintiff Michael Scott's Opposition to Defendant's Motion to Compel Deposition Testimony and Motion for Discovery Sanctions (And Cross Request for Fees/Costs) (ECF No. 130), plaintiff's Motion for a Protective Order and/or to Quash Subpoena Served on Acoway Logistics, LLC (“Motion to Quash”) (ECF No. 125), and defendant's Opposition to Plaintiff's Motion for a Protective Order and/or to Quash Subpoena Served on Acoway Logistics, LLC (ECF No. 133).[1] For the reasons discussed below, both motions are denied. Defendant's Motion to Compel Defendant moves to compel plaintiff Michael Scott (“plaintiff”) to: (1) produce the files on his cell phone which aided his testimony during his deposition; (2) produce his home address; and (3) testify regarding his prior convictions. (ECF No. 124 at 6-10). The scope of discovery is limited to those matters which are relevant to the parties’ claims or defenses. Fed. R. Civ. P. 26(b)(1). In addition, evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action.” Fed. R. Evid. 401. “While the scope of discovery is broad, it is not limitless.” Crumb v. McDonald's Corp., Civil No. DKC 15-1719, 2017 WL 1508755, at *2 (D. Md. April 27, 2017) (“Whether information is admissible under the Federal Rules of Evidence is not synonymous with whether it is discoverable under the Federal Rules of Civil Procedure....”). First, defendant argues that plaintiff “repeatedly referred” to files on his cell phone during his deposition to aid his testimony and that plaintiff should be compelled to produce those files. (ECF No. 124 at 6-7). In plaintiff's Opposition, counsel proffers that plaintiff only looked at his phone two times during his deposition, but did not rely upon, or substantively review, anything on his phone. (See ECF No. 130 at 2-5). Although I take note of the factual proffer set forth in plaintiff's Opposition, I conclude that, given that plaintiff's deposition was conducted under oath, it is appropriate for plaintiff to provide an affidavit under oath to the defense confirming the representations made in his Opposition. Plaintiff should do so by no later than July 25, 2022. Next, defendant contends that plaintiff is required to produce his home address, which plaintiff refused to provide during his deposition, asserting his Fifth Amendment right against self-incrimination. (ECF No. 124 at 7-8). On June 27, 2022, in response to the court's invitation, plaintiff submitted an ex parte letter detailing the reasons for his assertion of his Fifth Amendment privilege. (ECF No. 128). Based upon my review of that letter, I conclude that plaintiff has validly asserted his Fifth Amendment privilege and will not be compelled to provide his home address. In addition, I note that it is not clear how plaintiff's home address is relevant to the claims and defenses asserted in this case. See, e.g., Casa de Maryland, Inc. v. Trump, No. GJH-18-845, 2018 WL 1947075, at *2 (D. Md. Apr. 25, 2018) (granting individual plaintiffs’ request to conceal their addresses in part because it was “unclear how [their] addresses will be relevant to any questions of law or fact that the Court must resolve”). Accordingly, defendant's request to compel plaintiff to produce his home address is denied. *2 Finally, defendant argues that plaintiff should be required to testify regarding his prior convictions “because they are relevant to Mr. Scott's claims and discoverable pursuant to the Federal Rules.” (ECF No. 124 at 9). Plaintiff, however, asserts that he has already testified about his previous convictions and that defendant has access to plaintiff's criminal records. (ECF No. 130 at 6). In light of the testimony already provided to defendant related to plaintiff's prior convictions, I am denying defendant's request to conduct further discovery to determine the “facts and circumstances” surrounding those prior convictions. Defendant has adequate information regarding plaintiff's criminal record to allow defendant to seek to use plaintiff's prior convictions for possible impeachment or to advance defendant's argument regarding the extent to which the prior convictions affected the work programs which plaintiff was eligible to participate in during his incarceration, including the work release and work detail programs. Defendant has not offered any persuasive argument to support an inquiry into the facts and circumstances underlying plaintiff's prior convictions. Accordingly, defendant's request to compel plaintiff to so testify is denied. Plaintiff's Motion to Quash Plaintiff requests that the court quash the subpoena served upon plaintiff's employer, Acoway Logistics, LLC (“Acoway”) and issue a protective order. (ECF No. 125). Specifically, plaintiff argues that the information sought in the subpoena “has no relevance to whether Plaintiff Scott (or any other Plaintiff) was an employee of Baltimore County while working at the County's Material Recovery Facility (‘MRF’).” (Id. at 1). In support of its relevance argument, defendant relies on Matherly v. Andrews (ECF No. 133 at 4), a case in which the Fourth Circuit noted, among several reasons, that inmates are not “employees” under the Fair Labor Standards Act (“FLSA”) when they work “not to turn profits for their supposed employer, but rather as a means of rehabilitation and job training.” 859 F.3d 264, 278 (4th Cir. 2017). Defendant further contends that the subpoena in this case is narrowly tailored to seek relevant information and is “reasonably calculated to reveal information regarding the rehabilitative function of the work detail ....” (ECF No. 133 at 5). I conclude that defendant has articulated reasons establishing that the materials sought in the subpoena are relevant and, therefore, discoverable. Accordingly, plaintiff's Motion to Quash is denied. Attorney's Fees and Costs Both parties seek attorneys’ fees and costs related to expenses incurred relating to their respective motions. (ECF Nos. 124 at 11-12, 125 at 9). Plaintiff also seeks fees and costs incurred in defense of defendant's Motion to Compel (ECF No. 130 at 14-15), and defendant seeks additional fees and costs related to the subsequent deposition of plaintiff Scott requested by defendant (ECF No. 124 at 11-12). When a motion to compel disclosure or discovery is denied, the court must require the non-moving party to pay the movant's reasonable expenses incurred in making the motion unless “the motion was substantially justified or other circumstances make an award of expense unjust.” Fed. R. Civ. P. 37(a)(5)(B). “A motion is substantially justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” Hare v. Comcast Cable Commc'ns Mgmt, LLC, 564 Fed. Appx. 23, 24-25 (4th Cir. 2014) (citation and quotation marks omitted). Here, because the parties’ discovery motions involved good faith disputes, the court finds that the parties’ motions were substantially justified. It is not appropriate under the circumstances, therefore, to award attorney's fees or costs to either party. I am hopeful that my informal discovery dispute procedure (ECF No. 129) will allow counsel to efficiently and succinctly bring disputes to my attention, only after counsel have engaged in good faith efforts to resolve their disputes, without incurring unnecessary attorneys’ fees. Based upon the foregoing, defendant's Motion to Compel (ECF No. 124) is denied, and plaintiff's Motion to Quash (ECF No. 125) is denied. In addition, plaintiff Scott is directed to provide defendant by no later than July 25, 2022, an affidavit under oath setting forth facts confirming plaintiff's counsel's representations regarding plaintiff's use of his phone during his deposition. Further, Acoway is directed to respond to defendant's subpoena by no later than July 25, 2022. *3 Notwithstanding the informal nature of this letter, it will constitute an Order of the court and will be docketed accordingly. Footnotes [1] The court notes additional pending discovery disputes pursuant to the parties’ letters filed on July 12 and 13. (ECF Nos. 135, 137, 138). These disputes will be resolved in due course.